Obama administration divides over whistleblowers

It’s a battle that pits President Barack Obama against whistleblower advocates, against some of the largest federal employee unions, and against a bipartisan contingent in Congress.

The fight, over the rights of thousands — perhaps hundreds of thousands — of federal workers, has even divided Obama’s own administration. The White House — which has repeatedly pledged to be the most transparent in history and to embrace whistleblowers — has sided with the Pentagon and the intelligence community, but agencies charged with protecting whistleblowers and officials who investigate discrimination complaints have loudly dissented.

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The Justice Department and Defense Department are arguing that federal employees like commissary managers and accountants, who don’t have access to classified information, can be demoted or effectively fired without recourse to the usual avenues of appeal if their jobs are designated as “sensitive.” The ripple effect of that — critics say it would effectively strip huge numbers of federal workers of civil service protections by treating them like those who have access to the nation’s most vital secrets — could hollow out legal protections that have allowed whistleblowers to speak out with less fear of being fired.

A new brief defending the administration’s position in the hard-fought legal showdown is due at a federal appeals court early next month, but other executive branch agencies have rallied to the workers’ side.

“On the one side, you have the Department of Defense, and the Office of Personnel Management trying to functionally cancel the civil service system. And on the other side you have President Obama’s Merit Systems Protection Board and the Office of Special Counsel, defending the integrity of it,” Devine added.

Whistleblower advocates, including some in Congress, contend that allowing agencies greater latitude to reassign or even dismiss workers in “sensitive” positions will open another way for employees to retaliate against those who report fraud, waste or abuse of power.

“This abuse of national security classifications is a prime case where the administration could send a signal to the bureaucracy to knock this type of behavior off. Instead, the administration is backing an absurd position against the whistleblowers,” Grassley said in a statement to POLITICO. “If this administration wants to create an environment where whistleblowers aren’t afraid to come forward, helping the whistleblowers, instead of fighting them, would be a good place to start.”

Rep. Elijah Cummings of Maryland, the ranking Democrat on the House Government Reform and Oversight Committee, agreed.

“Providing agencies with complete discretion to strip federal workers of whistleblower and other civil service protections would undermine Congressional intent and would be patently unjust,” Cummings said.

It’s unclear how many workers are potentially affected by the dispute, but some lawyers involved believe the number is in the hundreds of thousands. The Office of Special Counsel, which investigates complaints from whistleblowers and prevents retaliation, calculated that about 500,000 Department of Defense civil service employees work in jobs considered “sensitive.” However, the percentage of those with and without formal classified information clearances is unknown.

A spokeswoman for the Office of Personnel Management said that office does not keep statistics on how many workers are in jobs deemed “sensitive.”